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Working Abroad RO credit, including "business trips;" an update

dpenabill

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Apr 2, 2010
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I have been researching the working-abroad-RO-credit issue in depth. This homework was inspired by the stark contrast of conflicting views about possible RO credit for "business trips" (in an effort to get it right), but of course it has involved reading scores and scores of sources dealing with many aspects of the working abroad credit, and reviewing dozens of actual cases (including revisiting the key, oft cited Federal Court decisions). So I plan to share some of what I have learned and use this topic to UPDATE information about the working-abroad-for-Canadian-business credit toward PR RO.

CAUTION: Actually qualifying for the working-abroad-for-Canadian-business-credit toward PR RO tends to be very tricky for any PR who actually needs the credit. It warrants noting, for example, even though I am very confident there is NO rule or policy which precludes the credit for "business trips," that does NOT mean business trips will qualify for the credit. The requirements are complex AND OFTEN STRICTLY APPLIED, depending on the FACTS in the particular case, which are typically also complex.

As I have previously observed, In particular:
It cannot be emphasized enough that even if a job is definitively for a Canadian business, it can be extremely tricky to know whether a credit will be given toward compliance with the PR Residency Obligation . . .

Thus, it warrants emphasizing that before taking a long-term job at a location abroad, or at the very least before relying on getting PR RO credit for any time employed abroad, obtaining the opinion of a qualified, reputable, Canadian immigration lawyer is the prudent thing to do.

Determining if and when a PR Residency Obligation credit is available while employed abroad by a Canadian business, for any employment beyond the obvious, clear-cut short term assignment (which usually means the PR will not need the credit to begin with), demands a careful, informed, experienced analysis of a wide range of facts and circumstances. This forum is NOT an appropriate venue for obtaining legal analysis or a legal opinion.
And, it warrants observing, that in this forum questions about the working-abroad-for-Canadian-business-credit toward PR RO tend to be posed relative to situations for which the credit probably is NOT available or, at best, the question is far too individual and complicated for this forum to provide a reliable response. Thus, for example, the approach that @zardoz has sometimes taken is perhaps the most appropriate response to these questions:

It is questionable if the days spent on business trips will be considered as contributing to residency days. Only IRCC can determine if this is the case.
The question is if IRCC will consider your business trip activity as meeting the Residency Obligations exemption or not. I do not intend to discuss the merits of this. That is up to IRCC to decide.

In the meantime, in the vein of providing an UPDATE about the working-abroad-for-Canadian-business-credit toward PR RO, among the more interesting bits of information I found in my research is a recent IAD decision which surprises me and which is contrary to not only a view I have expressed but which has been similarly expressed by others here.

See Kapoor v Canada (Citizenship and Immigration), 2018 CanLII 112319 (CA IRB), <http://canlii.ca/t/hw8jt>

NO MANDATE THAT THE PR FIRST WORKED IN CANADA:

The IAD stated, in a decision this past year, that in "establishing if the employment outside of Canada falls with the exceptions of 61(3)" (the working-abroad-for-Canadian-business-credit), "there is no requirement that the permanent resident initially worked in Canada, before being assigned to a position outside of Canada."

As I noted, this statement surprises me and is contrary to what others and I have said in this forum. I would be extremely cautious about relying on this view, even though it is an official ruling in an actual case. And this caution is further warranted given that the IAD's conclusion was predicated on a very specific factual showing relying on particular terms in the contract for this PR.

What matters more are the specific facts in the individual case:

The above IAD ruling warrants citation and quoting here because it illustrates the extent to which this credit depends far, far more on the particular facts in the individual case than generalizations. For example, I am very confident that generalizations like "business trips don't count" are NOT valid, no more valid than the converse, "business trips will count toward RO compliance." Neither of these generalizations state a valid rule or policy. What matters are the actual facts related to the employee/employer relationship, qualification of the employer, and qualification of the employment itself.

Characterization of the time abroad as a "business trip" illuminates little of use in determining if it qualifies for the credit.


SOURCES:

In coming posts I will share a number of specific sources about this credit. But, there are some sources which are cited again and again as establishing the baseline approach to interpreting and applying the credit, and anyone attempting to genuinely understand this credit is likely familiar with or interested in these sources:

The governing STATUTE is IRPA Subsection 28(2)(a)(iii) (Subsection 28(2)(a)(iv) is similar as to person a PR is accompanying abroad); see https://laws-lois.justice.gc.ca/eng/acts/I-2.5/page-7.html#h-20

The applicable REGULATION is IRPA Regulation 61; see https://laws-lois.justice.gc.ca/eng/regulations/SOR-2002-227/page-14.html#h-32

For relevant Operational Manuals see https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals.html and follow links for particular manuals. Operational Manuals relevant to working-abroad-credit include:

OP - 10 "Permanent Residency Status Determination," especially sections 6.5 (Employment outside of Canada) and 12 (Procedure: Guidelines for examining the residency obligation); this is mostly for visa offices processing PR Travel Document applications​

ENF - 23 "Loss of Permanent Resident Status," especially Section 7.4 "Employment outside Canada" which includes guidelines about suggested information and documentary evidence which is useful in determining if the working-abroad-for-Canadian-business-credit is allowed.

ENF - 4 "Port of Entry Examinations," especially section 11.12 "Residency obligation for permanent residents"

ENF - 27 "Permanent Resident Card,"​


Key (and oft cited) Federal Court Decisions regarding this issue:

Decision by Justice Simon Noël in Bi v. Canada (Citizenship and Immigration), 2012 FC 293 (CanLII), <http://canlii.ca/t/fqtsz>

Decision by Justice Kane in Durve v. Canada (Citizenship and Immigration), [2015] 3 FCR 537, 2014 FC 874 (CanLII), <http://canlii.ca/t/g90xc>

Decision by Justice Richard Boivin in Canada (Citizenship and Immigration) v. Jiang, 2011 FC 349 (CanLII), <http://canlii.ca/t/flfrk>

Decision by Justice Shore in Baraily v. Canada (Citizenship and Immigration), 2014 FC 460 (CanLII), <http://canlii.ca/t/g6z62>

Key and Significant IAD decisions regarding this issue:

Belghiti v Canada (Public Safety and Emergency Preparedness), 2016 CanLII 54523 (CA IRB), <http://canlii.ca/t/gt2g9>

Siek v Canada (Citizenship and Immigration), 2018 CanLII 79718 (CA IRB), <http://canlii.ca/t/htnww>

He v Canada (Citizenship and Immigration), 2018 CanLII 118633 (CA IRB), <http://canlii.ca/t/hwjnm>

Alkhen v Canada (Citizenship and Immigration), 2018 CanLII 107669 (CA IRB), <http://canlii.ca/t/hw2jt>

Nagappan v Canada (Citizenship and Immigration), 2018 CanLII 117109 (CA IRB), <http://canlii.ca/t/hwgqs>

Shen v Canada (Citizenship and Immigration), 2017 CanLII 56623 (CA IRB), <http://canlii.ca/t/h5pqz>

 

dpenabill

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Apr 2, 2010
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FOREMOST: A REQUEST FOR SOURCES re any rule specifically about "business trips" and the working-abroad-RO-credit:

The impetus for starting this topic is continued repetition of the widespread and so far as I can determine ERRONEOUS declaration that "business trips" abroad do NOT count toward RO compliance. In so far as I can find, and I have done the research (and this kind of research is something I have a good deal experience doing), there is NO credible source so much as suggesting any such rule or policy.

IF ANYONE HAS ANY CREDIBLE SOURCE showing there is any such rule or policy pursuant to which "business trips" abroad are NOT allowed credit toward PR compliance, PLEASE (please!) share here. I do not pretend to be infallible. I make mistakes. I prefer we get it right.

Thus, in particular, it would be much appreciated if any of you who made posts I quote below cite a reliable source for any such rule or policy.

Business trips outside of Canada cannot be counted towards the residency requirement.
Business trips don't qualify.
Business trips doesn't count towards residency requirements.
Business trips do not count towards the residency obligation.
They [the residency requirements] do not count time spent on regular business travelling

FULL-TIME BASIS employment and Business Trips:

I apprehend that some of those who state there is a rule or policy which precludes counting "business trips"
otherwise rationalize or conclude there is no credit for "business trips" based on the "full-time basis" element in the provisions (Section 28(2)(a)(iii) IRPA and Regulation 61(3) in the IRPA Regulations), or in similar IRCC information based on these provisions. For example:

Note the bold "FULL-TIME BASIS". Business trips don't qualify.
That’s a pretty clear definition of what is allowed.
For the time outside of Canada to count - the person has to be employed on a full time basis outside of Canada. That's what "outside Canada employed on a full time basis" means. Again, business trips don't count.
Frankly the logic escapes me. If a PR is employed on a full-time basis and goes abroad as ASSIGNED to work on behalf of the employer, whether that is for three days or three weeks or six months or a year, why would characterizing this assignment as a "business trip" not meet the "full-time basis" element to qualify for the credit? Here too I have done the research, extensively done the research, and have found NOTHING in the statutory provisions, regulations, IRCC online information, Operational Manuals, IAD decisions, or Federal Court decisions, which even suggests that someone who is employed full time by their Canadian business employer is, somehow, not employed on a full-time basis while they are working abroad just because the time abroad can be characterized as a "business trip."

Thus, ANOTHER REQUEST: please share any authoritative source for this OR at least offer some explanation how the "full-time basis" element precludes credit for full time employees sent on a business trip abroad.

Some context regarding what I have found so far: Several of the actual cases discussed in the decisions cited and linked in the first post here address aspects of the "full-time basis" element, NONE of which suggest that "business trips," as such, do not satisfy this element (some of course identify why the credit does not apply, but that is NOT because the time abroad was pursuant to a "business trip"). My research has, of course, led me to read many, many more decisions which discuss the "full-time basis" element, and here too NONE suggest a flat rule precluding credit just because the time abroad can be characterized as a "business trip." While there are varying situations in which this element is addressed, the circumstances described in the IAD decision Nagappan v Canada (Citizenship and Immigration), 2018 CanLII 117109 (CA IRB), <http://canlii.ca/t/hwgqs> seems typical; in this actual case denial of credit was based in significant part on facts showing the PR was working for a different employer during a substantial portion of the time abroad, and thus was not employed on a full time basis.

Additionally, as I have commented in another topic, I am also aware of decisions such as the IAD decision regarding Guomin Shen, in which the IAD ruled a particular PR's "business trips" did NOT qualify for the credit. see Shen v Canada (Citizenship and Immigration), 2017 CanLII 56623 (CA IRB), <http://canlii.ca/t/h5pqz>

In that decision, the IAD stated:

"I find that there is insufficient evidence to establish that the appellant was assigned on a full-time basis to a position outside Canada . . . . Rather, the evidence shows, as the appellant himself has testified, that his position with Canadian Metec Ltd. during the period under review was a position based inside Canada."

This tends to put more emphasis on the nature of the work itself, focusing on what constitutes a qualified "assignment" as such. Unfortunately, the decision is expressed in terms of a conclusion and does not clearly illuminate what indicia matter. This is a perennial problem with many IAD decisions, a problem which Justice Gauthier lamented in Durve I (which is oft cited, but not so much so as Durve II which is linked in the previous post); see Durve v. Canada (Citizenship and Immigration), 2011 FC 995 (CanLII), <http://canlii.ca/t/fmqvt> . . . noting, however, that to a significant extent some fair guidance has been offered in the key decisions I linked in my first post above.
 

dpenabill

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Apr 2, 2010
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Clarification In Regards to Framing the working-abroad-RO-credit Issue:

I suspect that a significant cause for conflicting views about business trips and the working-abroad-RO-credit derives from how the issue has been framed.

To be clear, I have found NOTHING which indicates characterizing time working abroad as a "business trip" has much if any influence in determining whether the time abroad qualifies for the working-abroad-RO-credit, let alone any overt rule or policy applicable to "business trips" specifically. In particular, my research, which includes having reviewed many DOZENS of ACTUAL cases as reported by OFFICIAL sources (that is, IAD and Federal Court decisions), tends to indicate that the "business trip" characterization is largely NOT relevant.

Indeed, I came across NO source which focused on characterization of the time abroad as a business trip or otherwise.

Thus, it appears there is nothing to be gained by framing questions about whether or not certain time abroad gets this credit in terms of whether the time abroad is a business trip. Whether it was a business trip, or something else, is NOT what matters.


WHAT DOES MATTER?

Actually others and I have addressed many aspects of this credit before, with lots of attention given to issues such as the "TEMPORARY" and "ASSIGNMENT" elements.

But many of us have erroneously glossed over some finer distinctions which can make a big difference. Such as the case I noted in the first topic, in which the IAD explicitly stated it was NOT NECESSARY that the PR first be employed in Canada before being given the assignment abroad. (Again, see Kapoor v Canada (Citizenship and Immigration), 2018 CanLII 112319 (CA IRB), <http://canlii.ca/t/hw8jt> )

As I have previously noted, even though assessing the availability of this credit can be very complicated, there is a tendency to avoid wading too deep into the weeds because MOST of the time the scenarios which arise here either appear to have very little chance of qualifying or are otherwise subject to too many variables to competently address them in this venue.

Which leads to an important distinction:

-- PRs Prospectively Evaluating Employment Abroad
VERSUS
-- PRs Evaluating RO Compliance Considering Past Periods of Employment Abroad

PRs Prospectively Evaluating Employment Abroad: I cannot emphasize enough that if a PR is considering employment abroad which might result in NOT meeting the RO based on days physically present in Canada, THAT IS A LAWYER-CONSULTATION MATTER. No doubt about it. And even with the assistance of a lawyer, a great deal of CAUTION is warranted. The rules and their interpretation aside, this is NOT an easy credit to qualify for if the PR is otherwise in a situation where the PR needs the credit. EXERCISE A LOT of CAUTION before taking work abroad if doing so means being abroad more than three years within the last five.

The information and updating of information this topic is intended to offer is more for PRs Evaluating RO Compliance Considering Past Periods of Employment Abroad. That is, for PRs who already may be dependent on counting time they were working abroad for a Canadian business in order to meet their RO. That is, this is for those whose situation is already fixed, and who may be looking for information about record-keeping, or about how to explain or argue for the credit in a PoE examination, PR TD application, or attendant a formal Residency Determination in other situations such as a PR card renewal. It may be useful for some to consider in deciding whether they can proceed to apply for a new PR card or whether they should wait until they have spent more time in Canada. Or, in evaluating prospects for an appeal of a PR TD denial or PoE issued Departure Order.
 

dpenabill

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Apr 2, 2010
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Actual Experience Related to Credit for time working-abroad-employed-by-Canadian-business, AND Further Observations Re Getting This Credit toward RO compliance:

There is no doubt that questions about the availability of the working-abroad-employed-by-Canadian-business-credit are FAQs. Indeed, other than PRC and PR TD process-related questions and related discussions (including timelines and such), this particular credit comes up in this forum just about as frequently as any particular PR obligations issue. And this credit is frequently the focus of litigation in both IAD appeals and Federal Court cases.

Thus, there is no shortage of relatively well-documented ACTUAL cases to consider.

Many of those who pose queries about the working-abroad-employed-by-Canadian-business-credit specifically ask for comments based on actual experience. I previously listed and linked a number of official FC and IAD decisions which are, of course, about actual cases (see post 1 in this thread). Those are decisions which explain key propositions and which have been influential in the interpretation and application of this credit. In this post I will provide a larger list which encompasses a broad range of ACTUAL cases (previously cited key cases included) in which the credit was claimed (and denied in most but allowed in some). See below.

But first, some IAD decisions last year have specifically listed the key factors considered in determining whether the working-abroad-employed-by-Canadian-business-credit is available. In particular, for example, Janotta v Canada (CIC), 2018 CanLII 41729 (CA IRB), http://canlii.ca/t/hrzg5 and Ersoz v Canada (CIC), 2018 CanLII 30503 (CA IRB), http://canlii.ca/t/hrg5n list the factors to be considered as:
1. Is the Canadian business a corporation incorporated under the laws of Canada, with majority ownership by Canadian citizens or permanent residents, with ongoing operations in Canada?
2. Is the business an enterprise with an ongoing operation in Canada that is capable of generating revenue and is carried on in anticipation of profit?
3. Is the appellant a full-time employee of the Canadian business or under contract to provide services to the Canadian business?

4. A Canadian business does not include a business that serves primarily to allow a permanent resident to comply with their residency obligation while residing outside Canada.

While these particular decisions have not been cited by other IAD Panels or the FC, this list coincides with how many, many other IAD panels have approached the issue. Basically, if the business or enterprise is organized or incorporated in Canada, and it is essentially an actual business operating for profit (even if not profitable) which has ongoing operations IN CANADA (not just affiliated with Canada), and the PR is a full-time employee, and the business is not one which serves primarily to allow a PR to meet the RO while residing outside Canada, the credit is available.

There is one additional factor looming large: the employment abroad needs to be pursuant to a TEMPORARY ASSIGNMENT.

There is also a relatively unspoken criteria which to some extent is similar to Regulation 61(2) in the IRPA Regulations, but is more or less a kind of shadow-factor: if it appears the overall context is orchestrated or arranged so as to allow the PR to meet the RO, this tends to invite a skeptical if not overtly negative analysis of the particular facts and circumstances (these cases appear to be the genesis of the TEMPORARY element, which derives from an interpretation of what is meant by "assignment" in 61(3) IRPA Regulations).

The latter fits in with the admonition I often repeat: those who APPEAR to be gaming-the-system can apprehend elevated scrutiny rising to the level of a skeptical if not overtly negative approach to their case. What is often underestimated by some PRs is that orienting their situation to TECHNICALLY meet minimum requirements risks APPEARING to be gaming-the-system.

Which brings me around to providing a longer list of IAD and FC decisions. The primary object is to provide a broad-range of ACTUAL cases as reliably described by OFFICIAL authorities.

For Reliable Accounts of Actual Cases Re working-abroad-credit See The Following:

Federal Court decisions:
Baraily v. Canada (CIC), 2014 FC 460 (CanLII), http://canlii.ca/t/g6z62
Bi v. Canada (CIC), 2012 FC 293 (CanLII), http://canlii.ca/t/fqtsz
Durve v. Canada (CIC), 2011 FC 995 (CanLII), http://canlii.ca/t/fmqvt
Durve v. Canada (CIC), [2015] 2014 FC 874 (CanLII), http://canlii.ca/t/g90xc
He -- Canada (CIC) v. He, 2018 FC 457 (CanLII), http://canlii.ca/t/hrv9t
Jiang -- Canada (CIC) v. Jiang, 2011 FC 349 (CanLII), http://canlii.ca/t/flfrk
Waraich v. Canada (CIC), 2018 FC 307 (CanLII), http://canlii.ca/t/hrbft


IAD decisions:
Adeosun v Canada (CIC), 2018 CanLII 79071 (CA IRB), http://canlii.ca/t/htn90
Alkhen v Canada (CIC), 2018 CanLII 107669 (CA IRB), http://canlii.ca/t/hw2jt
Belghiti v Canada (Pub Saf.), 2016 CanLII 54523 (CA IRB), http://canlii.ca/t/gt2g9
Durve v. Canada (CIC), 2013 CanLII 44900 (CA IRB), http://canlii.ca/t/fxgkq
Faeli v. Canada (CIC), 2005 CanLII 56914 (CA IRB), http://canlii.ca/t/1rnd9
Falsafi v. Canada (CIC), 2012 CanLII 92972 (CA IRB), http://canlii.ca/t/fvr0p
Gencoglu v Canada (CIC), 2016 CanLII 97304 (CA IRB), http://canlii.ca/t/gx80k
He v Canada (CIC), 2018 CanLII 118633 (CA IRB), http://canlii.ca/t/hwjnm
Imanzadeh v Canada (CIC), 2018 CanLII 102055 (CA IRB), http://canlii.ca/t/hvtkg
Janotta v Canada (CIC), 2018 CanLII 41729 (CA IRB), http://canlii.ca/t/hrzg5
Kanwal v Canada (CIC), 2018 CanLII 107687 (CA IRB), http://canlii.ca/t/hw2kp
Kapoor v Canada (CIC), 2018 CanLII 112319 (CA IRB), http://canlii.ca/t/hw8jt
Nagappan v Canada (CIC), 2018 CanLII 117109 (CA IRB), http://canlii.ca/t/hwgqs
Okunbo v Canada (CIC), 2018 CanLII 121460 (CA IRB), http://canlii.ca/t/hwmzs
Onianwah v Canada (CIC), 2018 CanLII 117112 (CA IRB), http://canlii.ca/t/hwgq6
Shah v. Canada (CIC), 2011 CanLII 55976 (CA IRB), http://canlii.ca/t/fn1xt
Shen v Canada (CIC), 2017 CanLII 56623 (CA IRB), http://canlii.ca/t/h5pqz
Shoaee v Canada (CIC), 2018 CanLII 72635 (CA IRB), http://canlii.ca/t/htbx7
Schroeder v Canada (CIC), 2018 CanLII 54709 (CA IRB), http://canlii.ca/t/hskn3
Siek v Canada (CIC), 2018 CanLII 79718 (CA IRB), http://canlii.ca/t/htnww
Tripathy v Canada (Pub Saf), 2015 CanLII 107860 (CA IRB) http://canlii.ca/t/h30s4
Wang v Canada (CIC), 2018 CanLII 57545 (CA IRB), http://canlii.ca/t/hsp86
Wei v Canada (Pub Saf.), 2016 CanLII 92583 (CA IRB), http://canlii.ca/t/gwpzn
Xin v Canada (CIC), 2018 CanLII 74069 (CA IRB), http://canlii.ca/t/htdrb
Zeng v. Canada (CIC), 2012 CanLII 12935 (CA IRB), http://canlii.ca/t/fqkw9
Zhou v Canada (Pub Saf.), 2018 CanLII 27228 (CA IRB), http://canlii.ca/t/hrbbj

This is a MERE SAMPLE. But it is a selective sample chosen from among many, many other official decisions. (Chosen with an emphasis on more recent cases, but some older influential and informative decisions are also listed.)

None of these so much as suggests that business trips do not count. Unfortunately, so far none of those who have repeatedly claimed that business trips do not count have responded to requests for sources or explanation.

Relative to the "full-time basis" element, to the extent it is addressed this is about the employer/employee relationship and, in particular, focused on whether the employee is engaged full-time for the employer. In addition to other decisions I have previously referenced, the Zhou v Canada (Pub Saf.), 2018 CanLII 27228 (CA IRB), <http://canlii.ca/t/hrbbj> decision illustrates what the typical full-time basis issue is about: in this case the PR admitted to working for the business just 20 to 30 percent of the time, and IAD accordingly concluded this meant the PR did not "work on a full-time basis."


In any event, given the level of interest in the working-abroad-employed-by-Canadian-business-credit, and given the extent to which I have now done some extensive research, in the near future I hope to better outline when this credit might be allowed, and of course share that here.

EDIT: have unsuccessfully attempted to fix some links. Cited sources with links that do not work can be reached by copying url without including the angle brackets ("<" and ">").
 
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dpenabill

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Apr 2, 2010
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To be clear, this research has NOT altered my view that the working-abroad-employed-by-Canadian-business-credit appears to be difficult to qualify for if it is a credit the PR needs in order to meet the PR RO.

The degree of difficulty verifying what will qualify for this credit warrants repeating the caution that any PR who is considering taking or continuing employment abroad which will result in having less than 730 days actual presence in Canada (within a relevant period of time) would be prudent to at least consult with a qualified, competent immigration lawyer, and otherwise carefully consider all the relevant factors. The statute and rule allowing this credit are NOT provisions which PRs should interpret or apply based on what technically meets the criteria. It is more complicated and TRICKY than that.

That said, I am NOT so sure about just how strictly and narrowly the requirements are applied, and it is possible that this is NOT approached as narrowly and strictly as I have previously apprehended. The more actual cases I become familiar with, the more obvious it is that this is something many, many PRs have tried to exploit to justify simply working abroad. In which cases denying the credit makes obvious sense.

In particular, some of the cases I have read (the number I have read is much larger than the sample linked above) reflect a fair degree of flexibility and lenience, and include situations in which the PR actually had been examined and allowed the credit but at the same time effectively cautioned against continuing to rely on the credit, and then the second or third time running into a negative decision (such as a PoE Report or being denied a PR TD). This is usually in connection with concerns about whether the employment abroad is TEMPORARY, that is an "assignment," or simply constitutes being employed abroad (remembering that just being employed abroad by a Canadian entity does NOT qualify).

In the meantime, in addition to the OFFICIAL sources I have so far referenced and linked, for purposes of further illumination and consolidating information here are links to some of the other topics here where this issue has been addressed in some depth:

https://www.canadavisa.com/canada-immigration-discussion-board/threads/time-spent-outside-canada-on-business-affects-pr-renewal.403662/

https://www.canadavisa.com/canada-immigration-discussion-board/threads/need-to-travel-for-business-purposes-pr-expired-and-is-on-proces-ro-did-not-meet.238059/

https://www.canadavisa.com/canada-immigration-discussion-board/threads/maintainence-of-residency.439049/

https://www.canadavisa.com/canada-immigration-discussion-board/threads/urgent-question-please-citizenship-requirements.516654/

https://www.canadavisa.com/canada-immigration-discussion-board/threads/pr-renewal.592315/

https://www.canadavisa.com/canada-immigration-discussion-board/threads/working-abroad-for-a-canadian-business.459485/page-2

https://www.canadavisa.com/canada-immigration-discussion-board/threads/pr-card-transferred-to-local-office-for-further-investigation.508090/page-4


Further observation re "business trips" in particular:

Among some older decisions, there is the Hussein v. Canada (Public Safety and Emergency Preparedness), 2010 CanLII 80104 (CA IRB), http://canlii.ca/t/2f9hx case in which the denial of credit while employed-abroad-by-Canadian-business DISTINGUISHED the PR's failure to document being employed full-time during ALL his "business trips." It is clear in this decision that "business trips" as such were NOT precluded from credit, but credit was precluded because the PR did not document being employed full time. In particular, the IAD stated:

It is difficult to determine exactly how much of the Appellant’s time abroad was spent legitimately in the employ of a Canadian company because the Appellant spent 534 days abroad in the five-year period where he combined work and family. This suggests that the Appellant was not employed full-time during all of his business trips abroad.

While this does not explicitly state that his business trips would have been credited (and indeed, as is often the case, there were additional negative factors), it indicates they would if he could document that he was employed full time by the Canadian business (and all the other requirements were met).
 
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dpenabill

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Apr 2, 2010
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Just noting that I am still doing some homework and still hope to outline the qualifying criteria for working-abroad credit.

In the meantime, though, one aspect of this particular RO compliance issue warrants some attention: the fact that the working-abroad credit is considered an EXCEPTION.

This matters and it matters a lot. Interpreting and applying the provision for this credit as an EXCEPTION is what underlies the rather NARROW and STRICT approach applied in determining when this credit is allowed.

As I have recently said in a more individual context, I would NEVER have gotten that this credit is an EXCEPTION from reading the law itself. On its face section 28(2)(a) IRPA does NOT distinguish days present in Canada as having any more weight than days "outside Canada employed on a full-time basis by a Canadian business." Credit for days actually in Canada is prescribed in 28(2)(a)(i) and the credit for working-abroad is prescribed in 28(2)(a)(iii), with no indication that one should be interpreted or applied differently than the other. But they are. The provision in 28(2)(a)(iii) is considered to be an EXCEPTION and is thus interpreted far more narrowly and strictly.

As much experience as I have reading, analyzing, and interpreting law (yes I have a lot of such experience, including more than a quarter century professional experience, but that is regarding law in OTHER jurisdictions, NOT Canadian law), I would NOT have had a clue that this provision is interpreted so differently from 28(2)(a)(i). As the statute is structured, including grammatically, these appear to be co-equal, each specifying what time counts toward RO compliance. Days physically in Canada count. Days abroad while employed by a Canadian business count.

BUT that is NOT how the law has been interpreted and applied. Indeed, scores and scores of Federal Court decisions and IAD decisions make it clear, absolutely clear, that credit toward compliance with the PR Residency Obligation for time abroad while employed by a Canadian business is an EXCEPTION in the calculation of compliance with the RO generally.

This particular aspect is a good example why stand alone interpretations of a law or rule, based on the language itself, can often be VERY WRONG. This is a good example of why jurists are so adamant that statutory construction can be very, very tricky.

And it highlights the need to look to multiple sources of information and NOT RELY ON SINGLE SOURCES, even if an official source, in figuring out how such matters actually work. Fortunately there are scores of sources of information about RO compliance generally and about the working-abroad credit in particular, and which have made it clear this credit is approached as an EXCEPTION . . . so I have some more homework to do in an effort to learn more about the nuances in interpreting this one particular provision, and better outline how this particular provision is applied.
 

dpenabill

VIP Member
Apr 2, 2010
4,379
1,508
VERBATIM QUOTE OF IRCC INFORMATION ABOUT WORKING-ABROAD CREDIT:

While this will fall way short of fully outlining what is needed to establish qualification for the working-abroad-credit, I am quoting below IRCC information which outlines the credit and what documents are needed to support a claim for the credit.

As I have cautioned again and again, these are narrowly construed and strictly applied, and there are more than a few pitfalls lurking beneath the surface. I am still working, as time permits, on a more comprehensive outline of the requirements and issues and pitfalls.

But given how often this issue arises, including questions as to what is necessary for a business to qualify, pending a more thorough explanation, this topic needs a verbatim quotation of the information provided by IRCC.

While there are multiple sources of information regarding compliance with the PR Residency Obligation which includes details about qualifying for the working-abroad-for-Canadian-business credit, the instructions and checklist provided for PR TD applications provides the best outline of what is required. Again, some caution is warranted because these do not adequately reveal how narrowly and strictly the requirements are interpreted and applied. But they do specifically enumerate the minimum.

So that information is the minimum a PR should be prepared to provide in the event of a Residency Obligation determination. There is, of course, a Residency Determination when a PR applies for a new PR card or applies for a PR Travel Document. Additionally PRs may be examined at a PoE about RO compliance. Obviously a PR will not typically be carrying all these documents every time the PR is traveling, BUT for a PR who is spending a lot of time abroad it will be prudent to be prepared for a PoE examination about RO compliance and have at least some of the key documentation in hand . . . some of the IAD cases describe PRs being cautioned at a PoE they should have proof the next time.


PR TD Application Instructions and checklist:

The guide for the PR TD application
includes a section specifically about the Residency Obligation, and it specifically addresses the working-abroad-for-Canadian-business credit. See https://www.canada.ca/en/immigration-refugees-citizenship/services/application/application-forms-guides/application-permanent-resident-travel-document.html

For the PR TD application checklist, follow the link from IRCC's web page about applications for a PR TD; see https://www.canada.ca/en/immigration-refugees-citizenship/services/application/application-forms-guides/guide-5529-applying-permanent-resident-travel-document.html

In any event, for reference: FROM the PR TD application checklist enumerating documents to include if the PR is seeking credit for time working outside Canada:

If you are working outside Canada, you must include a letter signed by an official of the business that confirms:
-- the position and title of the signing official;
-- the nature of the business and how it fits the description of a Canadian business (see definition in Residency Obligation section);
-- details of your assignment or contract outside Canada;
-- that you will continue working for the employer in Canada after your assignment; and
-- that the business has not been created primarily for you to meet your residency obligation.

You may also include:
-- articles of incorporation and business licenses,
-- partnership agreements and corporate annual reports,
-- corporate Canadian Income Tax Notices of Assessment and financial statements,
-- copies of the Employee Assignment Agreement or Contract,
-- copies of any agreements between the Canadian business and the business or client outside Canada concerning your assignment to that client or business,
-- pay statements,
-- Canadian income tax notice of assessment or T4 slips,
-- any other proof that you want us to consider.


The PR TD application Instruction Guide describes the "employment outside Canada" credit:

OPTION 2. Employment outside Canada
You may count each day you worked outside Canada if your employment meets these requirements:

• you are an employee of, or under contract to:
-- a Canadian business
-- the public service of Canada
-- a province or territory and
• as a term of your employment or contract, you are assigned on a full-time basis to:
-- a position outside Canada
-- an affiliated enterprise outside Canada or
-- a client of the Canadian business or the public service outside Canada


The PR TD application Instruction Guide further defines what constitutes a Canadian Business:

For this application, a Canadian business is defined as:
-- a corporation that is incorporated under the laws of Canada or of a province and that has an ongoing operation in Canada
-- an enterprise that:

-- -- has an ongoing operation in Canada
-- -- is able to generate revenue
-- -- is carried out in anticipation of profit
-- -- in which a majority of voting or ownership interests is held by Canadian citizens, permanent residents, or Canadian businesses as defined above or
-- an organization or enterprise created by the laws of Canada or a province

The Instruction Guide also elaborates some regarding what the letter should describe as to details of the assignment; that is, the letter from an official of the business must confirm:
details of your assignment or contract outside Canada such as:
-- length of the assignment;
-- confirmation that you are a full-time employee of the “Canadian business” working abroad on a full-time basis as a term of your employment, or that you are on contract working abroad on a full-time basis as a term of your contract; and
-- a description or copy of the position profile regarding the assignment or contract abroad;

Again, this is ONLY the information provided by IRCC and it FALLS WAY SHORT of adequately describing how the requirements for this credit are interpreted and applied, which again tends to be narrow and strict. But this is a good reference point. Otherwise this topic is still a work-in-progress.

 

bph

Newbie
May 18, 2019
3
0
I've spoken with a Canadian Immigration Lawyer and studied lots of information on this forum but have not seen a simple answer for my particular situation regarding simple business trips. As such, I am posting here for the first time as I am very interested to see what the forum experts think.

Background for my situation: was transferred to Canada back in 2007 by my global company and was happily employed on Canadian payroll from 2007 to 2015. Met my spouse and got married in Canada (she is also not a Canadian citizen) and we had two children born in Canada (hence they are Canadian citizens). My wife and I procrastinated a lot about staying in Canada forever and finally got our act together in 2014 to apply for PR after the birth of our second child. We applied just at the time Express Entry was being phased in but we opted to apply under the old system rather than wait for EE.

In summer 2015 my global company wanted to move me out of Canada, which I fought tooth and nail. I also applied to other positions with competitors but, since my PR application was still in progress at that point, I was not having much luck. Long story short, my wife and I took overseas work and moved out of Canada in August 2015. In July 2016 my wife and I were both successful obtaining PR, completed our landing, but then had to leave Canada to return to our overseas work. All throughout the time overseas we have maintained our primary residence in Canada (rented) but only returned for occasional trips.

We are now what I understand from this forum 'cutting it close' on our RO. We are just about to return and will be in time to meet the 730 days. I have been lucky and secured a new job back in Canada. However, I have a dilemma as this new job working for a Canadian company requires occasion business trips. I have a buffer of about 7 weeks over the next 2 years to still fulfill the RO. Up until reading this particular thread, I was quite confident that I understood the rules - basically that any day (technically midnight) spent outside Canada, apart from the situations of being permanently sent overseas by a Canadian company, etc., would not count to the RO. Hence my dilemma, which seems somewhat ridiculous, as of course I need a job but from the perspective of fulfilling my RO, it would be easier if I did not work and just stayed in Canada counting the remaining days to 730.

The business trips likely required would be short and infrequent and related to performing the role for the Canadian company. Likely 1-2 weeks here and there and maybe up to a total of 12-14 weeks in the remaining period from my obtaining PR to 5 years hence. So, if I am required to conduct these business trips, probably in about 1 year's time, I will violate the RO and likely get reported at a POE.

What I really would like to understand from forum members, is whether getting reported and appealing is my only real course of action for my situation. I think I have strong H&C grounds for such an appeal - two kids are Canadian and my wife will not violate the RO, etc. However, appeals are far from guaranteed of course. Hence, my dilemma, is do I regret the job and become unemployed looking for something with less business travel requirements but with a guarantee that I will not violate the RO. Or take the job and try to limit the business travel with the very real risk at some point of violating and then having to appeal.

Very grateful to experts on the forum to share their opinion on this.
 

canuck78

VIP Member
Jun 18, 2017
26,588
5,723
I've spoken with a Canadian Immigration Lawyer and studied lots of information on this forum but have not seen a simple answer for my particular situation regarding simple business trips. As such, I am posting here for the first time as I am very interested to see what the forum experts think.

Background for my situation: was transferred to Canada back in 2007 by my global company and was happily employed on Canadian payroll from 2007 to 2015. Met my spouse and got married in Canada (she is also not a Canadian citizen) and we had two children born in Canada (hence they are Canadian citizens). My wife and I procrastinated a lot about staying in Canada forever and finally got our act together in 2014 to apply for PR after the birth of our second child. We applied just at the time Express Entry was being phased in but we opted to apply under the old system rather than wait for EE.

In summer 2015 my global company wanted to move me out of Canada, which I fought tooth and nail. I also applied to other positions with competitors but, since my PR application was still in progress at that point, I was not having much luck. Long story short, my wife and I took overseas work and moved out of Canada in August 2015. In July 2016 my wife and I were both successful obtaining PR, completed our landing, but then had to leave Canada to return to our overseas work. All throughout the time overseas we have maintained our primary residence in Canada (rented) but only returned for occasional trips.

We are now what I understand from this forum 'cutting it close' on our RO. We are just about to return and will be in time to meet the 730 days. I have been lucky and secured a new job back in Canada. However, I have a dilemma as this new job working for a Canadian company requires occasion business trips. I have a buffer of about 7 weeks over the next 2 years to still fulfill the RO. Up until reading this particular thread, I was quite confident that I understood the rules - basically that any day (technically midnight) spent outside Canada, apart from the situations of being permanently sent overseas by a Canadian company, etc., would not count to the RO. Hence my dilemma, which seems somewhat ridiculous, as of course I need a job but from the perspective of fulfilling my RO, it would be easier if I did not work and just stayed in Canada counting the remaining days to 730.

The business trips likely required would be short and infrequent and related to performing the role for the Canadian company. Likely 1-2 weeks here and there and maybe up to a total of 12-14 weeks in the remaining period from my obtaining PR to 5 years hence. So, if I am required to conduct these business trips, probably in about 1 year's time, I will violate the RO and likely get reported at a POE.

What I really would like to understand from forum members, is whether getting reported and appealing is my only real course of action for my situation. I think I have strong H&C grounds for such an appeal - two kids are Canadian and my wife will not violate the RO, etc. However, appeals are far from guaranteed of course. Hence, my dilemma, is do I regret the job and become unemployed looking for something with less business travel requirements but with a guarantee that I will not violate the RO. Or take the job and try to limit the business travel with the very real risk at some point of violating and then having to appeal.

Very grateful to experts on the forum to share their opinion on this.
Your wife could also sponsor you again if you get reported. Your issues will really come up if you have to travel with an expired PR card. You’ll still have the option of flying to the US and going through the land border and showing your COPR and hoping you won’t get reported. Assuming you are not a US citizen. If you are close to meeting your RO many people don’t get reported. Keep your job. Too many what ifs to warrant switching jobs. Just an FYI your Canadian home wouldn’t be considered your permanent residence for the years you were abroad and rented it out.
 

bph

Newbie
May 18, 2019
3
0
canuck78, thank you very much for your reply. Neither my wife or me are US citizens. Yes, I realize that my wife could sponsor me if I lost my PR and we are confident she will confidently meet her RO with no violations and renew her card in mid-2021. I see that as a really last resort - e.g. I am issued a removal order and lose the appeal and then have my wife sponsor me. She might even qualify as a citizen by that point depending how long this all takes to play out.

I am also wondering what happens after I am reported but before my card expires. For example, if I travel outside of Canada on business trips for more than 7 weeks in the next year or so. I still have a year to go on my PR card but at a POE I run the very real risk of being reported. Fine, those are the rules. I understand I can then appeal and it might take considerable time until the hearing. Whilst on appeal waiting for the hearing I believe I can still travel and be readmitted to Canada with a non expired PR card. However, I assume getting reported multiple times whilst on appeal must look very bad with regards to the appeal. When my card eventually expires and perhaps, I have 5-6 weeks to reach 730 days, I believe I would have enough freedom in my job to stay put in Canada for the required weeks to fulfill the 730 days and then apply for a new card. I am not trying to game the system. It is just that the kind of job I would be doing for the Canadian firm would require such occasional overseas business travel. I am concerned that I take the job and after a year or so get reported and then have to quit to not violate multiple times. Does anyone have any advice or view on this aspect?

Again, many thanks for all of your helpful contributions.
 

dpenabill

VIP Member
Apr 2, 2010
4,379
1,508
As I am wont to do, this will go long . . . and I will address some aspects of these queries in a separate post.

In particular, I will save discussing, for a later post, whether or not, or to what extent, you might get credit toward RO compliance for times you go abroad working for a Canadian employer.

For now the following discussion assumes NO credit for time abroad (which is NOT to discount the possibility of getting such credit).

I've spoken with a Canadian Immigration Lawyer and studied lots of information on this forum but have not seen a simple answer for my particular situation regarding simple business trips. As such, I am posting here for the first time as I am very interested to see what the forum experts think.

. . . .

In July 2016 my wife and I were both successful obtaining PR, completed our landing . . .

We are now what I understand from this forum 'cutting it close' on our RO. We are just about to return and will be in time to meet the 730 days. . . . I have a dilemma as this new job working for a Canadian company requires occasion business trips. I have a buffer of about 7 weeks over the next 2 years to still fulfill the RO. Up until reading this particular thread, I was quite confident that I understood the rules - basically that any day (technically midnight) spent outside Canada, apart from the situations of being permanently sent overseas by a Canadian company, etc., would not count to the RO. Hence my dilemma, which seems somewhat ridiculous, as of course I need a job but from the perspective of fulfilling my RO, it would be easier if I did not work and just stayed in Canada counting the remaining days to 730.

The business trips likely required would be short and infrequent and related to performing the role for the Canadian company. Likely 1-2 weeks here and there and maybe up to a total of 12-14 weeks in the remaining period from my obtaining PR to 5 years hence. So, if I am required to conduct these business trips, probably in about 1 year's time, I will violate the RO and likely get reported at a POE.

What I really would like to understand from forum members, is whether getting reported and appealing is my only real course of action for my situation. I think I have strong H&C grounds for such an appeal - two kids are Canadian and my wife will not violate the RO, etc. However, appeals are far from guaranteed of course. Hence, my dilemma, is do I regret the job and become unemployed looking for something with less business travel requirements but with a guarantee that I will not violate the RO. Or take the job and try to limit the business travel with the very real risk at some point of violating and then having to appeal.
To be clear, I am NOT an expert. And I would not consider any posts here to be by an expert.

If you have the advice of a lawyer to work with, that is generally a far more reliable source than any posts here (which is not to overlook that even a lawyer's views should be carefully considered with due consideration for other sources of information).


What I can offer --

Technically a PR who fails to comply with the PR Residency Obligation is at RISK for being reported. H&C cases are always tricky and most are difficult. Reliance on H&C reasons is inherently high-risk. (Most of my observations about positive H&C factors is more for use when there is NO alternative . . . that is, for the most part about navigating the process AFTER there is already a breach of the RO.)

That said, as @canuck78 suggests, many PRs cutting-it-close on the non-compliance side of the equation, and even more than a few who are not-all-that-close, are NOT reported at a PoE despite being short of Residency Obligation compliance. This subject is discussed more in other topics. (This topic is specifically about criteria and parameters and factors related to getting credit toward compliance for time abroad.) So I will not dig into many of the relevant factors, other than to outline the biggest factors which include:
-- extent to which it appears the PR is currently settled and living in Canada
-- the PR's immigration history overall BUT recognizing, of course, the last five years (or since landing if that was less than five years ago) being far more important
-- how short of compliance the PR appears to be
-- duration of most recent trip or trips abroad
-- pattern of absences with an emphasis on more recent periods of time
-- other ties to a life in Canada​

Most of the cutting-it-close discussions in this forum are about PRs in compliance (at least claiming to be in compliance) and the RISKS of non-routine processing when applying to renew a PR card or the RISKS attendant being abroad and having to apply for a PR Travel Document -- and in regards to the latter, recognizing that a PR abroad without a valid PR card is PRESUMED (by law) to NOT have valid PR status AND the burden of proving status and RO compliance is on the PR.

There is also some risk of being reported, when cutting-it-close, EVEN if the PR truthfully claims to be in compliance. But this risk seems fairly small unless the PR is returning to Canada after a lengthy absence OR there is a pattern indicating the PR is NOT settled in Canada and is returning for little more than a visit.

In general, if you have been periodically coming to Canada these last three years, and you are back in Canada to stay, with a bona fide Canadian employed job, BEFORE the third year anniversary of the day you landed . . . if that is the scenario going forward, and then there are ONLY a few (occasional) trips abroad for just one or two weeks duration, there should be minimal risk of being reported at a PoE upon returning to Canada, even if you slightly exceed 1095 days absence since the date of landing and before the fifth year anniversary. (During the first five years, a new PR is in compliance with the RO unless or until the PR is absent for more than 1095 days. Since, give a day or two for leap years, that number of days absent makes it impossible to meet the RO.)

Which brings this around to the key substance of the observations offered by @canuck78 -- "Your issues will really come up if you have to travel with an expired PR card."

(As an aside, just to be clear, I also concur in @canuck78's observation about owning a home in Canada while you were residing abroad . . . whatever your reasons for that, NOT much help in the context of keeping PR status. It might be a small, very small, positive factor in an H&C case, but not enough to really make a difference in the outcome.)

Bottom-line: if you are settled in Canada before July 2019 (before the third year anniversary of date of landing), employed by a bona fide Canadian employer, and thus at a PoE upon arriving from abroad after an absence of less than two weeks, you can truthfully and forthrightly affirm your place of residence is a home address located in Canada and your employer is a bona fide Canadian employer for whom you work (at least most of the time) at a readily verified Canadian location, the risk of being reported is LOW as long as you are presenting a valid PR card. Even if the number of days you have been absent since landing slides over 1095 days by SOME (not a lot, but some), or after July 2021 over 1095 days within the preceding five years.

Once you no longer have a valid PR card, the RISKS increase. And, the risk of non-routine processing for a new PR card application will be fairly high (we cannot quantify this risk . . . we mostly know we see quite a few forum reports from PRs bogged down in Secondary Review or other types of non-routine processing when they are cutting-it-close. So, once your current PR card expires it may take a long while to obtain a new one. That is, you may have to go a period of several to many months without a valid PR card, and during that period of time travel abroad would be significantly more risky.

NOTE: A lot can change between now and then. Current political climate forecasts call for a chance of strong storms and changing winds in this year's Federal election.

BUT for the next two years, unless you go abroad more regularly or for longer periods of time than you are currently indicating, and as long as you do not lose your PR card and need a PR Travel Document during that time, the risk of being reported should be quite low.

If your "Canadian" job is a lot about actually working abroad, and you continue to go abroad for work, that would of course elevate the RISKS in the meantime.

THUS . . . see next post . . .
 

dpenabill

VIP Member
Apr 2, 2010
4,379
1,508
Continued from previous post . . .


I am also wondering what happens after I am reported but before my card expires. For example, if I travel outside of Canada on business trips for more than 7 weeks in the next year or so. I still have a year to go on my PR card but at a POE I run the very real risk of being reported. Fine, those are the rules. I understand I can then appeal and it might take considerable time until the hearing. Whilst on appeal waiting for the hearing I believe I can still travel and be readmitted to Canada with a non expired PR card. However, I assume getting reported multiple times whilst on appeal must look very bad with regards to the appeal. When my card eventually expires and perhaps, I have 5-6 weeks to reach 730 days, I believe I would have enough freedom in my job to stay put in Canada for the required weeks to fulfill the 730 days and then apply for a new card. I am not trying to game the system. It is just that the kind of job I would be doing for the Canadian firm would require such occasional overseas business travel. I am concerned that I take the job and after a year or so get reported and then have to quit to not violate multiple times. Does anyone have any advice or view on this aspect?
PRs who have been issued a 44(1) Report and Departure Order will NOT be reported again and again. They have already been issued a formal decision to terminate their PR status. That decision is NOT enforceable as long as an appeal is pending. Thus, they remain a PR in the meantime. Whether or not they get to keep PR status will depend on the outcome of the appeal.

But yes, further time abroad while an appeal is pending tends to be a negative factor in the H&C analysis . . . but for a PR cutting-it-close (not much in breach), who clearly did establish a permanent residence in Canada BEFORE being in breach of the RO and who is maintaining that residence, and that is where the PR's family lives and stays . . . IF the facts indicate the PR is continuing a pattern of BRIEF travel abroad for purposes of a job IN Canada, with a Canadian employer, the equities should lean heavily in favour of the PR keeping PR status.

AND, actually, these equities are also what tends to reduce the risk of being reported in the first place. If the PR is settled in Canada and not egregiously in breach of the RO, and going forward it appears clear the PR is on a track to stay settled in Canada and be in compliance with the RO soon, that is NOT a situation in which CBSA is (ordinarily) interested in spending valuable time to, in effect, punish an immigrant for being slow to make the settling move to Canada. Neither CBSA or IRCC plays the Gotcha game. If you are legitimately settling into a life in Canada, that is consistent with the purpose of the grant of PR, and that is perhaps the heaviest unwritten factor in determining how these things go.

Thus, as already discussed in depth, yes there is a "REAL" risk of being reported as soon as you have been absent from Canada for more than 1095 days since the day you landed (and before the fifth year anniversary of the landing date). BUT as previously observed, if you have come to Canada to settle and are settled in Canada, and working for a bona fide Canadian employer, the risk of being reported after a ten day trip abroad should be fairly small, real yes, but small. (Note, this may be a nuance a lawyer is NOT able to articulate because a lawyer probably is bound to explain and perhaps even emphasize what the rules are and the "real" risk that the rules will be enforced as such.)

Obviously the actual risk will vary with the particulars in your case. Perhaps the nature of your employment looms as the potentially more tricky element. Six to seven weeks abroad a year (12 to 14 in two years) sounds precarious, at the edge of actually ending up being more. That is, that seems a lot of time abroad UNLESS a key element of the work is abroad, and if a key element of the work abroad, that suggests the prospect, or at least the risk, that it will be MORE than just an average of two weeks every two months.

Note, for example, if as of the fifth year anniversary of landing you anticipate being just five or six weeks short of meeting the minimum presence in Canada, that is, you anticipate having been absent 1130 to 1137 days as of that date, that should mean you did not reach that 1095 plus days absent threshold until significantly into the fifth year . . . and by then you should have a well established pattern demonstrating you are living AND working in Canada and only taking brief trips abroad (for whatever purpose), dramatically reducing the risk of being reported even once you slide past 1095 days absent.

At least the first or second time. Toward the end of 2020? perhaps. And by then you will have gone through the PoE examination process numerous times with the RO issue lurking and then looming . . . and how it goes for YOU PERSONALLY should telegraph a good deal about what your risks are. You are far more likely to be admonished about RO compliance at least once before being reported (after a short trip abroad . . . PRs returning after a lengthy absence face a rather different scenario) . . . of course that could happen even before you have been absent for 1095 days, a PoE officer anticipating an impending future breach and cautioning you about the RO. But that would be a clue, a big clue. Once the PR is admonished that is NOT a clue that is the worst likely to happen but a clue that the PR's RO compliance is on their radar, meaning that the next time, or at least the time after that, there would be a much greater risk of being reported.

OVERALL OBSERVATION: I have gone into more depth relative to particular factors in an individual case than I ordinarily do. I am NOT an expert. I am not qualified to offer personal advice. What I have tried to do is outline some key elements to illustrate the variable factors which can influence how these things go, and to some extent the nature of that influence. How it actually goes for you will depend a lot on all the various particular facts and circumstances in your case. Not the least of which is what sort of impression you make in the course of a PoE examination, especially as to your personal credibility (and for this reason, apart from and in addition to other reasons, it is important to be as honest, accurate, and forthcoming as you can be in any PoE examination).

I have NOT gone into what happens in August or so in 2021, when your current PR card expires. If you can travel via the U.S., the only thing that changes is that the risk of being reported goes up significantly so it is more important to get into compliance before traveling abroad without a valid PR card . . .
. . . the vagaries of PR Travel Document application processing makes going abroad and relying on getting a PR TD to return, when cutting-it-close let alone actually being short of compliance, very risky . . .
. . . in any event, it may take a long while to obtain a new PR card. But that said, if it is readily apparent you met the RO and that you are settled permanently in Canada, it is entirely feasible the PR card application goes smoothly and timely, no significant delay.

The latter leads the discussion back to your EMPLOYMENT and related issues. Many, many PRs have what ostensibly is a job with a Canadian employer BUT the veil is easily seen through. The crux of their work, or core or focus or whatever, is ABROAD, NOT in Canada.

AND THIS IS A DOUBLE WHAMMY SCENARIO. To be continued . . .
 

dpenabill

VIP Member
Apr 2, 2010
4,379
1,508
The last post leads the discussion back to your EMPLOYMENT and related issues. Many, many PRs have what ostensibly is a job with a Canadian employer BUT the veil is easily seen through. The crux of their work, or core or focus or whatever, is ABROAD, NOT in Canada.

AND THIS IS POTENTIALLY A DOUBLE WHAMMY SCENARIO.

For you, in particular, the nature of your employment and the trips abroad pursuant to that employment, might loom as a particularly salient factor. On one hand, if you are employed by a legitimately Canadian business and you are periodically sent abroad to work on behalf of this employer, in work related to what that business does IN Canada, THAT TIME ABROAD SHOULD BE ENTITLED TO THE CREDIT FOR TIME-ABROAD-IN-THE-EMPLOY-OF-A-CANADIAN-BUSINESS.

The downside is that if that time abroad does NOT qualify for the working-abroad-for-Canadian-business credit, the reason why it does NOT qualify is likely to loom large as a potentially NEGATIVE factor otherwise as long as you are cutting-it-close relative to Residency Obligation compliance.

You appear to be persuaded your time employed abroad (for this new job) will NOT qualify for the credit. Why not is an important factor.

Leading to a more on-topic discussion . . .


THE PROSPECT OF CREDIT FOR TIME ABROAD IN THE EMPLOY OF A CANADIAN BUSINESS:

I've spoken with a Canadian Immigration Lawyer and studied lots of information on this forum but have not seen a simple answer for my particular situation regarding simple business trips . . .

I have been lucky and secured a new job back in Canada. However, I have a dilemma as this new job working for a Canadian company requires occasion business trips. . . .

The business trips likely required would be short and infrequent and related to performing the role for the Canadian company. Likely 1-2 weeks here and there and maybe up to a total of 12-14 weeks in the remaining period from my obtaining PR to 5 years hence. . . So, if I am required to conduct these business trips, probably in about 1 year's time, I will violate the RO and likely get reported at a POE.
It appears that if you get credit for the time you go abroad, that solves your problem, that will mean you do NOT breach the PR Residency Obligation.

It also appears that a lawyer may have advised you that the particular employment you are looking at will NOT qualify for the working-abroad-for-Canadian-business credit.

If the latter is true, WHY is of course an important question.

If that why is because such time abroad will be for "business trips," that is NOT a valid reason why the time would not count.

There is, in particular, widespread CONFUSION or MISUNDERSTANDING about what qualifies for the working-abroad-for-Canadian-business credit, that "business trips" do NOT qualify. It is feasible, perhaps even likely, some lawyers are also confused about this.

It is NOT that business trips, as such, do qualify for the working-abroad-for-Canadian-business credit.

BUT it is NOT true either that what might be characterized or labeled a "business trip" will necessarily NOT qualify for the credit.

The fact that the label "business trip" might describe the time abroad is largely NOT relevant.

BUT that said, to the extent that referring to the work abroad as a "business trip" might cause confusion, might lead a decision-maker to misunderstand the actual in fact nature and character of the employment, and fail to appropriately assess the factors which really do matter, which are the actual elements of what qualifies for the working-abroad-for-Canadian-business credit, it is probably better to avoid using this label altogether . . . and to be clear, it is very much a broad, overly-general label which can reference a wide, wide range of situations in which a person goes abroad on behalf of an employer.

So let's be clear. There are specific criteria which are used in determining whether time working abroad should be given the credit. As one IAD panel has framed the matter, the factors to be considered are:

1. Is the Canadian business a corporation incorporated under the laws of Canada, with majority ownership by Canadian citizens or permanent residents, with ongoing operations in Canada?
2. Is the business an enterprise with an ongoing operation in Canada that is capable of generating revenue and is carried on in anticipation of profit?
3. Is the appellant a full-time employee of the Canadian business or under contract to provide services to the Canadian business?
4. A Canadian business does not include a business that serves primarily to allow a permanent resident to comply with their residency obligation while residing outside Canada.

This list coincides with how many, many other IAD panels have approached the issue. Basically, if the business or enterprise is organized or incorporated in Canada, and it is essentially an actual business operating for profit (even if not profitable) which has ongoing operations IN CANADA (not just affiliated with Canada), and the PR is a full-time employee, and the business is not one which serves primarily to allow a PR to meet the RO while residing outside Canada, the credit is available.

There is one additional factor looming large: the employment abroad needs to be pursuant to a TEMPORARY ASSIGNMENT.

There are no definitive guidelines for how temporary. A six month assignment, with a plan for the PR to return to his or her job in Canada, clearly meets this criteria. A one month assignment, likewise. A one-week assignment, should also be likewise. There is NO indication that an assignment, as such, must be for a minimum period of time . . . long assignments, in contrast, might pose a factual issue as to whether the assignment is actually TEMPORARY. But as long as the PR is employed full time by the employer, it does not matter how short the assignment is.

I do NOT know how your prospective employment fits into the analysis. The details matter.

What does not matter is whether someone might describe the time abroad as "business trips." If someone asks whether the time abroad was for business trips, if the facts support it, it might be fair to answer "well, these trips were pursuant to assignments to do XXX and YYY in this or that location abroad, on behalf of my employer."

Generally it is best to NOT be evasive when answering questions posed by CBSA or IRCC agents or officers, but sometimes careful wording to avoid pitfall phrases is warranted. I do not know if a CBSA officer or IRCC agent will ask if these were "business trips;" I doubt it, if the PR has not used the term, but I am not sure. I do not know that using the term "business trip" will trigger a characterization that rejects credit for the time, but there has been enough misunderstanding and confusion expressed about this to suggest it might trigger CBSA or IRCC to also confuse a LABEL for the facts.

What I do know is that the cases have come down both ways regarding periods of time PRs have self-described as "business trips," and there is an easy explanation for the disparity in results: the LABEL is NOT what is important. Whether the employment and assignment meet the criteria is what matters. So some "business trips" will NOT qualify for the credit. And some work abroad which might be labeled "business trips" will qualify.

NOTE: much of the confusion seems to derive from the employed full time factor. Some appear to interpret or apply this to the assignment itself . . . that the assignment abroad must be at a position which itself is full time. The actual criteria is met as long as the work abroad is pursuant to full time employment. So as long as the PR is employed full time by the Canadian business, that meets the criteria. Thus, an assignment which involves meeting with various clients in various locations from day to day during a trip abroad should qualify. No need to be employed full time as to any of those particular duties along the way . . . again, so long as the PR is engaged full time on behalf of the employer.
 

bph

Newbie
May 18, 2019
3
0
Many thanks dpenabill for your response. It think this is becoming clearer to me now thanks to the extension explanation. I think a lot of people are confused, including myself, when interpreting Appendix A: Residency Obligation here. I think I have been over complicating the issue and my initial interpretation was reinforced by several comments I have seen from others discussing this. This confusion is explained by dpenabill in the section FULL-TIME BASIS employment and Business Trips above. Appendix A describing the RO talks about Time Outside Canada with the following three situations:

Situation 1. Accompanying a Canadian citizen outside Canada
Situation 2. Employment outside Canada
Situation 3. Accompanying a permanent resident outside Canada


When I first read this I interpreted that any time working outside of Canada only counted towards RO if you were transferred overseas on a full-time basis and working for a Canadian employer, etc, etc. This led me away from thinking that the much simpler case of short 'business trips' outside of Canada whilst living in Canada working for a Canadian employer would not quality. Hence, the statement in my original post:

Up until reading this particular thread, I was quite confident that I understood the rules - basically that any day (technically midnight) spent outside Canada, apart from the situations of being permanently sent overseas by a Canadian company, etc., would not count to the RO.

My situation is quite simple. I will be residing in Canada and full-time employed by a Canadian employer. Part of my job will be occasional short duration trips outside of Canada to meet with clients to better understand how the Canadian business can improve their products. This is all in service of the Canadian business for which I am still employed full-time during the 1-2 weeks at a time I would be visiting clients outside of Canada. At no time will I be transferred or working for anybody else. From re-reading the various material on this, I now conclude that such 'business trips' do count towards RO.

As this new understanding is quite impactful for me (on the positive side), I would like to ask whether people think this 'new' interpretation is correct. It makes a lot more sense to me, especially compared with turning down legitimate Canadian employment to just sit out my time essentially not working. Quite possibly there are forum contributors that have been in this situation and have experience of taking such short business trip whilst under full-time Canadian employment? I can't be the only PR who requires such trips outside of Canada whilst fulfilling RO.

It seems the lawyer I consulted also thought that simple business trips, such as in my case, do not count to RO. Can legal professionals also be confused by this?

Since I will be shipping household goods separately on my upcoming return to Canada, I expect to visit secondary. At that point, I am well within the RO and will ask the officers for their advice on this particular topic. I will be interested if they will comment. Maybe they won't agree to comment on some future situation that currently doesn't apply to me. Or maybe they will be helpful and explain how in reality they approach this situation.
 

21Goose

VIP Member
Nov 10, 2016
5,100
1,504
AOR Received.
Feb 2017
Many thanks dpenabill for your response. It think this is becoming clearer to me now thanks to the extension explanation. I think a lot of people are confused, including myself, when interpreting Appendix A: Residency Obligation here. I think I have been over complicating the issue and my initial interpretation was reinforced by several comments I have seen from others discussing this. This confusion is explained by dpenabill in the section FULL-TIME BASIS employment and Business Trips above. Appendix A describing the RO talks about Time Outside Canada with the following three situations:

Situation 1. Accompanying a Canadian citizen outside Canada
Situation 2. Employment outside Canada
Situation 3. Accompanying a permanent resident outside Canada


When I first read this I interpreted that any time working outside of Canada only counted towards RO if you were transferred overseas on a full-time basis and working for a Canadian employer, etc, etc. This led me away from thinking that the much simpler case of short 'business trips' outside of Canada whilst living in Canada working for a Canadian employer would not quality. Hence, the statement in my original post:

Up until reading this particular thread, I was quite confident that I understood the rules - basically that any day (technically midnight) spent outside Canada, apart from the situations of being permanently sent overseas by a Canadian company, etc., would not count to the RO.

My situation is quite simple. I will be residing in Canada and full-time employed by a Canadian employer. Part of my job will be occasional short duration trips outside of Canada to meet with clients to better understand how the Canadian business can improve their products. This is all in service of the Canadian business for which I am still employed full-time during the 1-2 weeks at a time I would be visiting clients outside of Canada. At no time will I be transferred or working for anybody else. From re-reading the various material on this, I now conclude that such 'business trips' do count towards RO.

As this new understanding is quite impactful for me (on the positive side), I would like to ask whether people think this 'new' interpretation is correct. It makes a lot more sense to me, especially compared with turning down legitimate Canadian employment to just sit out my time essentially not working. Quite possibly there are forum contributors that have been in this situation and have experience of taking such short business trip whilst under full-time Canadian employment? I can't be the only PR who requires such trips outside of Canada whilst fulfilling RO.

It seems the lawyer I consulted also thought that simple business trips, such as in my case, do not count to RO. Can legal professionals also be confused by this?

Since I will be shipping household goods separately on my upcoming return to Canada, I expect to visit secondary. At that point, I am well within the RO and will ask the officers for their advice on this particular topic. I will be interested if they will comment. Maybe they won't agree to comment on some future situation that currently doesn't apply to me. Or maybe they will be helpful and explain how in reality they approach this situation.
I worked for a large global company's Canadian subsidiary (it's one of Microsoft/Google/Amazon/Facebook. It's really large.), and the guidance from our very expensive lawyer was this:

1. You need to be employed as a full time employee by the Canadian office. You can't be located here and getting paid in the US, for e.g.
2. Your work needs to be primarily in Canada - the role is important. If you are serving the Canadian market (say for example your job is marketing finserv products to Canadian banks), you will qualify. If your role is seen as global/US based, and you just happen to be physically in Canada, that gets tricky.

If 1 & 2 is true, then occasional trips to the US (or any other country) would count towards RO. For example, going for training, meetings, attending industry conferences - all this would count towards RO since this is part of your job and all goes towards doing a better job in Canada.

If either 1 or 2 was false... contact the corp team and they will look into the specifics of the case.

This was the official guidance from the corporate immigration team, and I have many colleagues (and myself) who traveled on this basis. I never heard of anyone facing any issues when it came time to prove presence.